Lockwood v. Adamson

Decision Date06 February 1991
Citation409 Mass. 325,566 N.E.2d 96
PartiesRhodes G. LOCKWOOD, et al. 1 trustees, v. Janet ADAMSON et al. 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Brian C. Broderick, Boston, for plaintiffs.

Lane McGovern (Marc J. Bloostein, Boston, with him) for Brooks St. John Smith.

G. Mitchell Eckel, III, Boston, for Janet Adamson & others.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LYNCH, Justice.

The trustees of a testamentary trust seek instructions as to whether a child adopted by his biological mother's second husband may share in the trust income under a bequest to "issue" of the child's natural father. It is contended by Janet Adamson, Ruth Meleen, Henry St. John Smith, IV, and Michael St. John Smith (hereafter referred to collectively as the Adamson appellees), first, that the term "issue" does not include such an adoptee, and, second, that G.L. c. 210, §§ 6, 7 (1988 ed.), 3 preclude the child from sharing in the testamentary class gift. The trustees filed a complaint for instructions in the Probate and Family Court, which reported the case without decision to the Appeals Court. We transferred the case here on our own motion. We conclude that the child may take under the class gift in this case.

The parties agree to the following material facts. On February 2, 1972, William P. Wharton (testator) executed a will providing for a trust. The will states that the trustees shall pay one-half of the trust income to the testator's nephew, Dr. Henry St. John Smith (Dr. Smith), "or his issue by right of representation if he is not living on the date of distribution." The will further directs that, upon termination of the trust, the trustees shall pay one-half of the trust principal to Dr. Smith or, if he is not then living, to his "issue by right of representation." The trust has not yet terminated.

Dr. Smith died in September, 1986, survived by four children (Adamson appellees). A fifth child, Christopher St. John Smith, predeceased Dr. Smith leaving a son, Brooks, who is also a party to this proceeding. 4 Brooks, Dr. Smith's grandson, was born on June 1, 1967, the legitimate child of Christopher and his wife, Hilary.

Christopher and Hilary had been divorced in February, 1969, and Hilary married William C. Huyck the following July. Christopher died less than one month later. On May 15, 1970, William Huyck adopted Brooks under the laws of Oregon. 5

After the testator's death in 1976, the trustees periodically paid one-half of the trust income to Dr. Smith pursuant to the terms of the will. When Dr. Smith died ten years later, the trustees began to distribute his share among his four surviving children. On October 23, 1987, the trustees made one payment to Brooks from the income of the trust. However, the trustees then became uncertain whether G.L. c. 210, § 7, providing in part that a "person shall by adoption lose his right to inherit," bars Brooks from sharing in the trust income, and are currently holding a one-fifth share of the trust income in escrow.

1. The testator's intent. It is axiomatic that "the fundamental rule for the construction of wills is to ascertain the intention of the testator from the whole instrument, attributing due weight to all its language, considered in the light of the circumstances known to him at the time of its execution and to give effect to that intent unless some positive rule of law forbids." Fitts v. Powell, 307 Mass. 449, 454, 30 N.E.2d 397 (1940). Accord Babson v. Babson, 374 Mass. 96, 104, 371 N.E.2d 430 (1977); Bank of New England, N.A. v. McKennan, 19 Mass.App.Ct. 686, 689, 477 N.E.2d 170 (1985). In this instance, the will does not state explicitly whether the word "issue" includes natural descendants who have been adopted as Brooks was. The testator and the drafter of his will, however, are presumed to have known the law of Massachusetts and the judicial construction of the terms they used. See McKennan, supra at 689, 477 N.E.2d 170, and cases cited. Therefore, we turn to this court's definition of "issue" for guidance as to the testator's intent.

"As we have had occasion to state, we ordinarily will construe 'issue' to include all lineal descendants ... unless we discern a testamentary purpose" to the contrary. Prince v. Prince, 354 Mass. 588, 591, 239 N.E.2d 18 (1968). Accord Watson v. Goldthwaite, 345 Mass. 29, 33, 184 N.E.2d 340 (1962); Young v. Jackson, 321 Mass. 1, 5, 71 N.E.2d 386 (1947); Welch v. Colt, 228 Mass. 511, 515, 117 N.E. 834 (1917); Jackson v. Jackson,153 Mass. 374, 377, 26 N.E. 1112 (1891). See also G.L. c. 4, § 7 Sixteenth (1988 ed.). "Descendants," in turn, has long been held to mean persons "who by consanguinity trace their lineage to the designated ancestor." Evarts v. Davis, 348 Mass. 487, 489, 204 N.E.2d 454 (1965), and cases cited. Thus, as the biological grandson of Dr. Smith, Brooks at first glance appears to be among Dr. Smith's issue.

However, the Adamson appellees contend that under a line of cases stemming from Ernst v. Rivers, 233 Mass. 9, 123 N.E. 93 (1919), this is not the case. In Ernst, this court held that a devise or bequest to "issue" refers to "that class of beneficiaries who would be entitled to take under the law of intestate succession if the designated ancestor had died at the time fixed for ascertaining the class, and also indicates that the members of the class so determined are to share in the same manner and proportions as such persons would share under the statute relating to the distribution of intestate estates." Id. at 14, 123 N.E. 93. We have followed this holding in a number of subsequent decisions. See, e.g., Merrimack Valley Nat'l Bank v. Grant, 353 Mass. 145, 148, 228 N.E.2d 732 (1967); New England Trust Co. v. McAleer, 344 Mass. 107, 111, 181 N.E.2d 569 (1962); B.M.C. Durfee Trust Co. v. Borden, 329 Mass. 461, 463, 109 N.E.2d 129 (1952). The Adamson appellees argue that, because under G.L. c. 210, § 7, a child loses the right to inherit from intestate biological parents and kindred and because "issue" means persons "who would be entitled to take under the law of intestate succession" (Ernst, supra), Brooks is not a member of the class described in the testator's will. We disagree.

In large part, the rule in Ernst is intended to avoid competition between parent and child by distributing shares in a gift to "issue" per stirpes, as would the laws of intestacy. Ernst, supra, 233 Mass. at 14, 123 N.E. 93. Thus, the rule reflects the principle of construction that "interpreting a will to allow grandchildren and great grandchildren (and their descendants) to take simultaneously, and thus admit children to compete with their living parents, is to be avoided unless such was plainly the testat[or's] intent." Evarts, supra, 348 Mass. at 489, 204 N.E.2d 454, citing Ernst, supra. The concern of infighting between parent and child is not raised by this case, however, since Brooks's father has predeceased him.

Moreover, neither Ernst nor the decisions that follow it apply the rule to exclude children who have been adopted from taking as issue of their biological ancestor. 6 It is unlikely that the Ernst court and its successors contemplated that adoptees would be barred from taking as issue under wills or trusts of their natural antecedents because, at the time these cases were decided and until 1967, G.L. c. 210, § 7, as amended through St.1965, c. 252, provided that a "person shall not by adoption lose his right to inherit from his natural parents or kindred" (emphasis added). R.L.1902, c. 154, § 7. See St.1967, c. 114. Nor does the logic underlying the holding in Ernst require excluding adopted children from the definition of "issue" of their biological antecedents because the Ernst court, by invoking the law of intestate estates, itself defined "issue" in terms of bloodlines. Thus, neither the facts nor the reasoning of the Ernst line of cases leads to the application of G.L. c. 210, § 7, in its current form to restrict the generally accepted meaning of the term "issue."

The statutory evolution of the rules of intestate succession is also significant to our decision. In construing the term "issue" as those who would take under the law of intestate succession, the Ernst court made note of R.L.1902, c. 133, § 1, now codified at G.L. c. 190, § 3 (1988 ed.). See Ernst, supra at 15. That statute did not then, nor does it now, exclude adoptees from being among the "issue" of their biological parents. We are not persuaded, therefore, that Ernst leads to the conclusion that G.L. c. 210, § 7, is applicable in determining the testator's intent. Rather, G.L. c. 190, the descendant of the intestacy statute considered in Ernst, is more significant in ascertaining the testator's intent.

In sum, this court has long defined "issue" to include all lineal descendants, and, the Ernst line of cases notwithstanding, we have never excluded from the term a child adopted out of a testator's family. We conclude, therefore, that the testator intended his gift to "issue" to include any blood descendant adopted out of his family, as Brooks was. We turn to the question whether G.L. c. 210, §§ 6, 7, bar Brooks from sharing in the trust as the testator intended.

2. The applicability of G.L. c. 210, § 7. At first glance, G.L. c. 210, § 7 (hereafter § 7), seems to bar Brooks's claim. That statute provides, in pertinent part: "A person shall by adoption lose his right to inherit from his natural parents or kindred." 7 We hold, however, that § 7 applies only to the inheritance of property through intestate succession.

While we have never squarely ruled on this issue, we have consistently referred to § 7 as an intestacy statute. See, e.g., New England Merchants Nat'l Bank v. Groswold, 387 Mass. 822, 828-829, 444 N.E.2d 359 (1983) (referring to § 7 as an "intestacy law [ ]"); Katz v. Koronchik, 369 Mass. 125, 125-126, 338 N.E.2d 339 (1975) (§ 7 precludes "an adopted...

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